ZHINMINAY v. CAVUS (2007)

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 16, 2007, which granted plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, the cross motion denied and the matter remanded for further proceedings.

The record on appeal does not allow for meaningful review of defendants' contention that plaintiff's cross motion was untimely.

Neither plaintiff nor defendant driver Ahmed gave clear testimony on precisely what happened immediately before the accident, instead offering equivocal recollections of the relevant events.   Given the inconsistencies, lack of clarity and issues of credibility in the record (see Rodriguez v. New York City Hous. Auth., 194 A.D.2d 460, 462, 599 N.Y.S.2d 263 [1993];  American Realty Co. v. 64 B Venture, 176 A.D.2d 226, 227, 574 N.Y.S.2d 344 [1991], lv. denied 79 N.Y.2d 756, 583 N.Y.S.2d 192, 592 N.E.2d 800 [1992] ), the cause of the accident should be resolved on cross-examination before a fact-finder, rather than on summary judgment (see Carlos v. Rochester Gen. Hosp., 163 A.D.2d 894, 558 N.Y.S.2d 417 [1990] ).

Defendants' remaining contentions are academic in light of our determination.